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Empire Justice Comments on Proposed SNAP Regulations: Eligibility, Certification and Employment & Training

July 5, 2011


Ms. Lizbeth Silbermann, Director
FNS -- Program Development Division
3101 Park Center Drive, Room 810
Alexandria, Virginia, 22302

Re: Proposed Regulations: SNAP Eligibility, Certification, and Employment and Training
Provisions, RIN 0584–AD87

Dear Ms. Silberman:

I am submitting these written comments on behalf of the Empire Justice Center. 

Empire Justice is a statewide, multi-issue, multi-strategy public interest law firm focused on changing the “systems” within which poor and low income families live. With a focus on poverty law, Empire Justice undertakes research and training, acts as an informational clearinghouse, and provides litigation backup to local legal services programs and community based organizations.  As an advocacy organization, we engage in legislative and administrative advocacy on behalf of those impacted by poverty and discrimination.  As a non-profit law firm, we provide legal assistance to those in need and undertake impact litigation in order to protect and defend the rights of disenfranchised New Yorkers.

We appreciate FNS’ overall approach in implementing the 2008 Farm Bill provisions, and are generally supportive of the proposed regulations.  We do have some specific areas of concern which are addressed below. 

Dependent Care Deduction: 7 CFR 273.9(d)(4)
-We wholeheartedly support the lifting of the cap and the inclusion of transportation and activity fees. 
-We ask that these changes be made:

  • Explicitly allow the deduction for households when a household member is looking for work.  Clarify that the work search effort does not have to be part of a formal FSET program.
  • Do not restrict the definition of a dependent through age. 
  • If FNS ultimately decides that an age limit must be prescribed, the final language should at least be amended to reflect that the deduction is available for children up through their 16th birthday (rather than age 15)
  • Do not restrict the definition of adult dependent to SNAP’s “disabled” or “elderly” definition. 
  • Households should be allowed to deduct dependent care costs on behalf of individuals who are temporarily disabled or incapacitated, but do not meet the 12-month durational requirement that would be necessary for them to count as disabled. 
  • Explicitly allow the deduction for households receiving subsidized dependent care, to allow them to count their out of pocket costs.
  • Explicitly allow the deduction to be utilized for payments made to non-household family members.   
  • Clarify that states should defer to the household’s judgment as to whether dependent care expenses incurred by working parents are “necessary.”
  • Many working low income parents cannot afford to enroll adolescents in summer activities the entire summer.  Parents may make strategic decisions that their child can be unsupervised for periods of time as long as there are blocks of supervision or supervised activities built in.  States should not deny dependent care costs for these blocks of supervised activities under the theory that they are “optional” care which isn’t really necessary.  In one recent case in our state, a district told a parent that leaving her pre-teen home alone for several days demonstrated that the household didn’t need dependent care, and any dependent care costs the parent submitted in the future for the pre-teen would be disallowed.   This household wound up being shut out of the dependent care deduction for the entire summer solely because the mother couldn’t afford the luxury of paying for dependent care the entire summer.  Food stamp offices should not be substituting their own judgment as to whether the dependent care is necessary or optional in this type of situation.  Clarification from FNS in the final rule could help alleviate this problem in the future.
  • Allow households to have the option of averaging dependent care costs over the course of the certification period. 
  • This option could be particularly helpful to households who only incur dependent care costs during the summer months (ie, for pre-teens and adolescents), especially for high one-time costs.


Telephonic Signature: 7 C.F.R. §§273.2(b) & (c)
-We strongly support the acceptance of other forms of non-verbal assent, including gestured or visual signatures, as valid signatures for SNAP applications, and well as the inclusion of specific requirements for various types of signature and non-paper applications.
-We ask that these changes be made:

  • Applicants must be given a copy of their completed application whether they complete a paper application in the office or an online application from their home.
  • Clarify that in giving households the opportunity to review the information in the application that:
  • Any failure by the household return the form will not result in any sanction or termination of benefits
  • Failure of a household to correct information will not create an inference of willful misrepresentation.
  • ALL applications must be processed within normal and expedited processing standards, even if the household fails to return the copy of the completed application.
  • Remove the mandate for a signature on periodic reports.

Telephone Interviews: 7 C.F.R. §273.2(e)(2) & 7 C.F.R. §273.14(b)(3)
-We support the decision to codify the beneficial and wide use of telephone interviews in lieu of in-person interviews.
-FNS should clarify that households with hardships continue to have the right to a telephone interview.
-The final regulations should clearly state that all households retain their right to have a face-to-face interview.
-The final rules should also explicitly state that telephone interviews must be accessible to all households, including households with disabilities and those with limited English proficiency.

Reorganization of Periodic Reporting: 7 C.F.R. § 273.12
-We appreciate the efforts to make this section of the rules more transparent, but we are concerned about certain changes which impose additional burdens:

  • Changes in ABAWD work hours should not be a mandatory change report.
  • Benefits should not be adversely affected when households report a change that they were not required to report.

Excluding Retirement and Education Accounts: 7 C.F.R. § 273.8(e)(2)(i) and § 273.8(e)(20)
-We support the proposed rule as written, although this is not an option that affects most food stamp recipients in New York State (because of expanded categorical eligibility).
-Clarification from USDA on how to identify excludable accounts would be extremely helpful.

Employment and Training Funding for Job Retention Services: 7 C.F.R. § 273.7(e)(1)(viii)
-We strongly support the extension of employment and training (E&T) services to SNAP participants who have begun working and generally support the proposed rules as written.
-We ask that the final rules:

  • Allow states to identify when the 90 days of services start
  • Explicitly allow dependent care and transportation costs as allowable expenses
  • Allow states to serve former SNAP participants within the 90 day timeframe. 

Military Combat Pay: 7 C.F.R. §273.9(c)(20)
-We support the exclusion of a military “combat pay” from income.
-The final rules should provide clear guidance on what constitutes “special pay” so that SNAP offices can accurately identify families eligible for the exclusion.

Standard Deduction and Minimum Benefit Adjustments: 7 C.F.R. § 273.9(d)(1)(iii) and 7 C.F.R. § 273.12
-We support the proposed rule.
-We ask that USDA ensure that states with Combined Application Projects (such as the New York State Nutrition Improvement Project aka “NYSNIP”) and all waivers with specialized benefit calculations provide for annual adjustments on a timely basis.

Option to Average Student Work Hours: 7 C.F.R. § 273.5 (b)(5)
-We strongly agree that student work hours should be allowed to be averaged over the course of a month.
-We ask that the averaging metholodogy also be made available over the course of an academic period (ie, semester or trimester). 

Transitional Benefit Allowance (TBA) : 7 C.F.R. §§273.26 – 273.32
-We support that participants of State-funded cash assistance programs
(SFCA) are eligible to receive transitional benefits when they are no longer
connected to the cash assistance program.

-We ask that these changes be made:

  • Clarify that TBA is available for households leaving cash assistance whether it is funded with TANF funds, MOE funds, or state funds that do not count towards MOE.
  • Clarify that households under partial sanctions in TANF who are not leaving TANF due to the sanction are eligible to receive TBA.
  • Make clear that states may only adjust a household’s TBA because of income information that they learn about from another program or to prevent a former household member from receiving duplicative benefits.

Thank you very much your consideration of our comments.